A magazine subpoena stomps on free speech

Wielding subpoenas demanding information on anonymous commenters, the government is harassing a respected journalism site that dissents from its policies. The U.S. Attorney’s Office for the Southern District of New York claims these comments could constitute violent threats, even though they’re clearly hyperbolic political rhetoric.

This is happening in America — weirdly, to a site I founded, and one whose commenters often earned my public contempt.

Los Angeles legal blogger Ken White has obtained a grand jury subpoena issued to Reason.com, the online home of the libertarian magazine I edited throughout the 1990s. The subpoena seeks information about commenters who posted in response to an article by the site’s editor Nick Gillespie about the letter that Silk Road founder Ross Ulbricht wrote to Judge Katherine Forrest before she sentenced him to life in prison without parole. Ulbricht was convicted of seven felony charges, included conspiracies to traffic in narcotics and launder money, and faced a minimum sentence of 20 years in prison. The letter was an appeal for leniency.

Gillespie, who declined to comment on the subpoena, aptly described the letter as “haunting.” In it, Ulbricht expressed the libertarian ideals he said animated his creation of Silk Road — the same ideals that Reason upholds. The portion Gillespie reproduced reads:

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“I created Silk Road because I thought the idea for the website itself had value, and that bringing Silk Road into being was the right thing to do. I believed at the time that people should have the right to buy and sell whatever they wanted so long as they weren’t hurting anyone else. However, I’ve learned since then that taking immediate actions on one’s beliefs, without taking the necessary time to really think them through, can have disastrous consequences. Silk Road turned out to be a very naive and costly idea that I deeply regret.

“Silk Road was supposed to be about giving people the freedom to make their own choices, to pursue their own happiness, however they individually saw fit. What it turned into was, in part, a convenient way for people to satisfy their drug addictions. I do not and never have advocated the abuse of drugs. I learned from Silk Road that when you give people freedom, you don’t know what they’ll do with it. While I still don’t think people should be denied the right to make this decision for themselves, I never sought to create a site that would provide another avenue for people to feed their addictions. Had I been more mature, or more patient, or even more worldly then, I would have done things differently.”

The letter depicts Silk Road as an attempt to bring libertarian ideals into the real world — a virtual version of the seasteading schemes for new countries, hopelessly naive, perhaps, but certainly not evil in its intentions.

Judge Forrest handed down a sentence even more draconian than prosecutors had sought and made a point of condemning Ulbricht’s political views. “In the world you created over time, democracy didn’t exist,” she said. “Silk Road’s birth and presence asserted that its … creator was better than the laws of this country. This is deeply troubling, terribly misguided and very dangerous.”

Whatever you think of Ulbricht or Silk Road, you can see why libertarians might be upset. A federal judge has just made the belief that it’s good for people to have “the freedom to make their own choices, to pursue their own happiness, however they individually saw fit” part of her justification for the most punitive sentence short of the death penalty. Her rationale offends libertarians on two grounds: It punishes political views and it punishes their particular political views.

The Reason commenters expressed heartbreak and rage. “Damn, it’s painful to read that letter. A life sentence for providing a platform for people to do what they do regardless — just making it easier,” Lady Bertrum wrote in the first response. “The rightness of his worldview bumping up against his naivety and arrogance is awful.”

Unfortunately, such ladylike responses aren’t typical of Reason commenters, who often sound like drunk teenage boys trying to one-up each other. They tend to forget that their online pals aren’t the only ones reading what they say. In his post, White described Reason as a “leading libertarian website whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.” Puerile they undoubtedly are, but Reason commenters are also harmless (unless you care about reasoned political discourse or the image of libertarians).

In this case, they were furious and, in their fury, some of them got nasty. “Its judges like these that should be taken out back and shot,” wrote Agammamon. “Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first,” responded croaker. “I hope there is a special place in hell reserved for that horrible woman,” commented Rhywun. “I’d prefer a hellish place on Earth be reserved for her as well,” chimed in ProductPlacement. (Reason has since removed the offending comments.)

No one in their right mind would take this hyperbolic venting seriously as threatening Judge Forrest, who back in the fall had personal information published on an underground site, along with talk of stealing her identity or calling in tips to send SWAT teams to her house. The Reason commenters, by contrast, included nothing so specific.

As White notes in his post, which offers a detailed legal analysis of the situation, the comments “do not specify who is going to use violence, or when. They do not offer a plan, other than juvenile mouth-breathing about ‘wood chippers’ and revolutionary firing squads. They do not contain any indication that any of the mouthy commenters has the ability to carry out a threat. Nobody in the thread reacts to them as if they are serious.” Nobody even assumes the judge will see their comments. Why would she?

Venting anger about injustice is not a crime. Neither is being obnoxious on the Internet. The chances of one of these commenters being convicted of threatening the judge are essentially nil. Conviction isn’t the point. Crying “threats” just makes a handy pretext for harassing Reason and its commenters.

The real threats aren’t coming from the likes of Agammamon and croaker. They’re coming from civil servants in suits. Subpoenaing Reason’s website records, wasting its staff’s time and forcing it to pay legal fees in hopes of imposing even larger legal costs (and possibly even a plea bargain or two on the average Joes who dared to voice their dissident views in angry tones ) sends an intimidating message: It’s dangerous not just to create something like Silk Road. It’s dangerous to defend it, and even more dangerous to attack those who would punish its creator. You may think you have free speech, but we’ll find a way to make you pay.

Virginia Postrel, a Bloomberg View columnist, writes about commerce and culture, innovation, economics, and public policy.